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2006 DIGILAW 1259 (AP)

Haridasyam Srinivasa Murthy v. M. Janardhan Reddy

2006-10-13

P.S.NARAYANA

body2006
ORDER When this civil revision petition came up for admission, notice before admission was ordered on 25-7-2006 and interim stay was granted for a limited period, which is being extended. 2. The civil revision petition is filed against the docket order dated 4-7-2006 made in I.A.No.1381 of 2006 in O.S.No.1732 of 2000 on the file of II Additional Junior Civil Judge, Warangal. The revision petitioner, 4th defendant in O.S.No.1732 of 2000 filed an application I.A.No.1381 of 2006 in O.S.No.1732 of 2000 praying for the relief of summoning the Advocate Commissioner by name Sri R. Venkateswar Rao who was appointed as an Advocate Commissioner in O.S. No.1036 of 2000, which is pending before the same Court and also another Advocate Commissioner by name Sri A. Venkata Rama Narasaiah, who are practising Advocates in Warangal Bar Association as Court witnesses. 3. The learned Judge recorded certain reasons and ultimately allowed the application partly permitting the petitioner to examine A. Venkata Rama Narsaiah only and issued summons to A. Venkata Rama Narsaiah on payment of process. The revision petitioner, aggrieved by the other portion of the order negativing the relief of summoning Sri R. Venkateswar Rao had preferred the present civil revision petition. 4. Sri M. Rama Krishna, the counsel representing the revision petitioner would submit that the learned Judge having allowed the application partly negativing the other relief cannot be sustained. The learned counsel would also submit that even if the report of the Advocate Commissioner is in relation to yet another suit the examination of such Commissioner would be essential for the purpose of establishing relevant facts. The counsel also placed reliance on a decision in M. Rama Naidu and another v. B. Srinivasulu Naidu. 5. Per contra, Sri Madan Mohan Rao, the learned counsel representing the first respondent would submit that this is a suit for mere perpetual injunction and the report filed in yet another suit had been marked. It is not necessary that such Commissioner to be examined for the reason that the 1st respondent is not party to the said litigation. Hence the counsel would submit that the learned Judge exercised the discretion properly in allowing the application partly. 6. It is not necessary that such Commissioner to be examined for the reason that the 1st respondent is not party to the said litigation. Hence the counsel would submit that the learned Judge exercised the discretion properly in allowing the application partly. 6. It is stated by the petitioner in I.A.No.1381 of 2006 that he is the 4th defendant in O.S.No.1732 of 2000 and the suit in O.S.No.1772 of 2000 filed by his mother were clubbed to be decided together and before clubbing, his father was examined as P.W.1 in O.S.No.1772 of 2000 and his evidence was treated as D.W.1 and the petitioner was examined as D.W.2. It is also stated that during the pendency of both the suits Smt. A. Sunanda filed an application in O.S.No.1036 of 2000, which is pending before the Court for localization of the suit land and in the said suit, the Court Commissioner Sri R. Venkateswar Rao was appointed to ascertain the suit land and the land of the neighbour Smt. Aktharunnisa begum, which is illegally claimed by Smt. A Sunanda, whether the land fell in S.No.38 or 441 (new). It is also stated that the said Commissioner, with the help of the Assistant Director, Survey and Land Records, Warangal, measured the new S.No.441 (old No.48) and old S.No.38 (presently merged in Aabadi) in which they purchased their respective properties. It is also stated that the Assistant Director found in the presence of all the parties and their respective counsel that the suit schedule property and the land of their neighbour Smt. Aktharunnisa Begums house which is situated at S.No.38 (old) are presently merged in Abadi and further found that S.No.441 (old S.No.48) is about 378 chains away from the suit scheduled property. It is also stated that they had obtained certified copy of the said report, which was marked as Ex.A-14 (B-14) to elicit the real facts from the mouth of the witness and other factual details in relation to the report of the Commissioner which had also been mentioned in the affidavit filed in support of the application, the application to be allowed. 7. A counter was filed resisting the said application and the stand taken by the 1st respondent-plaintiff is that he is non-party to the said litigation, and hence, the Commissioner need not be summoned for the purpose of examination in the present suit. 7. A counter was filed resisting the said application and the stand taken by the 1st respondent-plaintiff is that he is non-party to the said litigation, and hence, the Commissioner need not be summoned for the purpose of examination in the present suit. The other factual details need not be gone into at this stage. 8. It is no doubt true that the learned Judge recorded certain reasons and partly allowed the application permitting cross-examination of the commissioner, who was appointed in the present suit. It is also not in serious controversy that the 1st respondent is a non-party to the litigation. But however, the fact remains that the certified copy of the said report was marked in the present suit as Ex.A-14 (B-14). The aspect that the evidentiary value of a particular document, the report of the Commissioner in yet another litigation and how far the same would be binding on a non-party to the litigation may have to be gone into at the appropriate stage. 9. In M. Rama Naidu and another v. B. Srinivasulu Naidu (supra-1) while dealing with the certified copy of the commissioners report in one suit and the admissibility thereof as evidence in another suit, this Court held that the admissibility of a document as evidencing transaction is different from admitting the document to prove the contents thereof. So far as the admissibility of a document as evidence of a transaction is concerned, anybody who obtained the certified copy of the said document can produce the same for the purpose of showing the said transaction and the document is admissible for that purpose. But, if the party wants to prove the contents, they can be proved by the author of the document. Therefore, if the Commissioner is not examined, the document would not become inadmissible but the probative value of the report would be very weak. 10. The normal rule is that the evidence not to be shut and to be permitted unless the parte had been so negligent or non diligent in transacting the litigation or such evidence cannot be the permitted at all in view of any prohibition as such. Here is a case where the report of the Commissioner had already been marked. 10. The normal rule is that the evidence not to be shut and to be permitted unless the parte had been so negligent or non diligent in transacting the litigation or such evidence cannot be the permitted at all in view of any prohibition as such. Here is a case where the report of the Commissioner had already been marked. It is pertinent to note that in cases where the parties intend to choose the examination or cross-examination of the Commissioner appointed in the self-same suit the same also is for the purpose of getting further clarifications, in the light of the objections if any filed or otherwise. It is true that such report being part of the record can be gone into even without examination of such Commissioner but however, in a case of this nature whether in yet another suit though the 1st respondent-plaintiff was not a party to the said litigation, a Commissioner was appointed, it would be just and appropriate to permit such Commissioner to be examined for the limited purpose of explaining in relation to the report of the Commissioner already submitted by him. It is needless to say that the value to be given to such evidence may have to be appreciated at the appropriate stage. It is no doubt true that it is a suit filed for mere perpetual injunction, but incidentally, the other questions also may have to be gone into. In view of the fact that the said document was already marked, this Court is of the considered opinion that the learned Judge had not exercised the discretion properly in declining to summon and permit the petitioner to examine R. Venkateswar Rao, Advocate Commissioner appointed in O.S.No.1036 of 2000. In view of the same, the impugned order so far as it relates to declining summoning of Mr. R. Venkateswar Rao, the Advocate Commissioner is hereby set aside. 11. Accordingly, the Civil Revision Petition is hereby allowed to the extent indicated above. No costs.